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Re T (Placement Order) [2008] EWCA Civ 542

Application for permission to appeal, with appeal to follow, care and placement orders. Application allowed and placement order set aside.

Both parents had severe learning difficulties and, although the father had initially argued before the trial judge that the children could be rehabilitated, it was accepted by all that the threshold criteria were met. The social workers, guardians and experts involved agreed that the children were severely disturbed and one of them suggested in his report that the long term interest of the children might be better met through long term foster care as the children would be difficult to place for adoption. In spite of this the judge considered that making a placement order now would provide the best solution as it would give the local authority flexibility and certainty.

Hughes LJ, however, concluded that the judge erred in this respect as the children were not yet ready to be placed for adoption: it did not necessarily follow that it was in the child's best interests to be placed for adoption now just because it was generally thought that adoption was the best long term solution. However he rejected the argument that an interim, rather than a full, care order should have been made as it was clear that the parents could not cope and that the children would not be returned to them.


Neutral Citation Number: [2008] EWCA Civ 542
Case No: B4/2007/2860
WR07 C0053, Z00502 & Z00503
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 19/03/2008
Before :

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Re T (Children: Placement Order)

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Mr M Keehan QC and Miss Lucy Hawkins instructed by Painters for the Appellant Father
Miss L Meyer QC and Miss Michelle Friel instructed by Respondent Local Authority
Miss Nergis-Anne Mathew instructed by MFG for the Respondent Mother
Mr. G Rogers instructed by The Family Firm for the Children by their Guardian

Hearing dates : 6th March 2008
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Lord Justice Hughes :
1. Nothing in any report must identify the children in this case. If reported, it must be reported as "Re T (Placement Order)".

2. In this case the Judge made care orders in relation to two boys aged just seven and not quite 5. He also made placement orders under the Adoption and Children Act 2002, with a view to their placement for adoption. The principal issue which had been contested before the Judge had been Father's contention that the children ought to be rehabilitated to the parents. The unanimous evidence before the Judge was that that was simply impossible, not only now but at any time in the foreseeable future. The Judge concluded that there was no prospect of it being possible. There is, now, no challenge to that, his principal finding. The main challenge which is brought is based upon the contention that it was, on the unusual facts of this case, too early to make a placement order. Secondly, it is said on behalf of Father that the Judge also erred in making a full care order; instead, it is said, he should have made an interim order. The unusual feature of the case is that because the children were very disturbed, the Local Authority proposed to place them in a specially selected therapeutic foster placement for an unspecified period not shorter than six months before making the decision how and where to place them for the long term.

3. The boys were born on 21 November 2000 and 19 December 2002 respectively. Their parents both have significant learning difficulties, Mother more than Father; indeed Mother was too disabled to conduct her own affairs and was represented by the Official Solicitor in the proceedings. There had been grave problems for several years in the care of the two boys. The statutory (threshold) criteria were admitted at the trial to be met. The Judge summarised the position succinctly:

"…suffice it to say that this harm arose from various sources, neglect by way of provision of food, lack of stimulation, failure of proper supervision and inadequate medical and dental attention, inappropriate chastisement on father's part. There is very clear evidence in the past of an anger management problem and a lack of self control on his part, and the parents' fragile and inconsistent relationship, which must have been obvious to the children."

4. The harm to the children arose, as the Judge found, from the inadequacies of both parents rather than from malice. They did not seek to damage the children deliberately; they were simply quite unable to cope either with their own emotions and needs, or with those of the children. By the time of the hearing before the Judge they were living together, although there appears to have been a period of separation in the previous year, but were likely to separate more permanently. The boys had been accommodated by the Local Authority since Summer 2006, thus for about 15-16 months by the time of the hearing. The two independent social workers in the case, each with over twenty five years' experience, both described the boys as among the most damaged and needy children that they had ever worked with. They were both deeply angry and lacked the ability to engage with others, including their parents and other adults. In the elder these characteristics took the form of frequent withdrawal within himself into excessive independence and detachment, with privately expressed anger, for example via soiling and smearing. In the younger, the form of expression was more often frank external aggression and anger. They were also highly competitive with, and very intolerant of, each other. Their attachment to their parents was very insecure. Nor had they formed proper attachments to the foster parents with whom they had been living for over a year by the time of the hearing. They remained detached and angry.

5. One of those independent social workers, Miss Courtney, therefore advised that before any attempt was made to place the children for adoption, they should be moved to a therapeutic foster placement. By that she did not mean a residential unit designed for psychiatric treatment, nor did she mean a programmed course of treatment. She meant specialist foster parents with expert skills in teasing out from the children an ability to give of themselves and thus form secure attachments. She was not suggesting a fixed period of such a placement. Different estimates were given of how long it might appropriately last. The Judge concluded that the net effect of the evidence was that it would be not less than six months, but on the evidence it could be up to a year, and conceivably a little beyond that. The purpose, as Miss Courtney explained it, was not so much as to effect in that short time a transformation of the boys to ordinary undamaged children, but to equip them with some ability to begin to form attachments, to enable the social work team responsible for them to see what kind of long term substitute parents they would need, and to help prospective parents to see what task they were taking on. A further purpose of this proposal was, concurrently with the specialist placement, to reduce contact with the parents, once again to help the boys form attachments elsewhere.

6. Miss Courtney's proposals were accepted by the Local Authority and advanced as theirs at the hearing. By the time of the hearing suitable specialist foster parents had been identified, whom Miss Courtney said appeared from the description given to fit the bill she had had in mind. The children had not yet been placed there, no doubt because the issue for the hearing remained whether they should be returned to their parents. We are told that they were, as proposed, placed with the specialist fosterers a few weeks after the hearing.

7. The Local Authority's plan was for adoption as the best long term solution for these boys. The care plan left open the question of whether they should be placed for adoption together or separately, for decision in the light of experience of the specialist foster placement. Although the care plan did not say so, as it should have done, the Local Authority made plain from the outset that its contingency plan, if placement for adoption were to prove impossible, was for long term fostering. That can have been of no surprise to anyone. The boys could not go home, and there were no family members who could care for them. It was a clear case where the future had to lie in a long term substitute family, either by adoption or by long term fostering if adoption proved impossible.

8. There was clear evidence before the Judge that adoption was the best solution for these boys if it could be achieved. The two witnesses who addressed that question, apart from the principal social worker, were Miss Courtney and the Guardian, and both gave clear evidence to this effect. Apart from the well-recognised advantages to children of full membership of a new family in their own right, to which both adverted, Miss Courtney referred to the critical advantage of adoption, particularly for damaged people, that it brings lifelong support.

9. However, Miss Courtney's report said this:

"It is my opinion that [the boys] are not yet ready to form more secure attachments in an adoptive placement and so it would be very difficult to place them for adoption in the immediate future, either together or separately. In part the high level of contact that has been maintained with their parents, to enable them to return home if possible, has meant that they have not begun to develop the capacity to make more secure or adaptive relationships."

10. For his part, the very experienced Guardian, in his report, said this:

"In my experience of these matters, children who struggle to make attachments are amongst the most difficult to bring about successful placements for. Adoptive parents can at times cope with enormous difficulties relying as they do on their determination and stamina, but children who struggle to make relationships, to give anything of themselves back, can very often cause the process to flounder.

It might be that with the therapeutic care Miss Courtney suggests, the boys will make progress with their relationships; that is certainly to be hoped. If this is not the case, it might be that the care authority will need to consider whether they would fare better in long-term foster care rather than adoption. It might not be the finding of adopters that would be difficult but making the placements work that could be more elusive.

Generally speaking (and it is a generalisation) foster carers tend to be adults who have completed their families is some way and are not looking towards substitute care to bring the unique rewards of parenthood. I think that this is less likely to be the case with adopters who might have a different investment in and different expectations of the whole venture. Fostered children are more likely to receive a continuing service from the local authority than are adopted children whose new families often see the retreat of the social workers with varying degrees of haste."

In his oral evidence the Guardian said this:

"…they need a new family; that is best served by being a proper legal member of that family. The feasibility of getting that far is the matter, I think, that's more in question."

A moment or two later he put it this way:

"If someone could embrace them and put up with all the difficulties that would follow at this stage, (inaudible) perhaps they're adoptable; I cannot [semble imagine] many who would do that and it is going to be much more helpful to give the children the experience which helps them relate to a family and is going to be more rewarding for everyone, everyone concerned and one doesn't want to set them up for failure…..when I used to be involved with adoption placements, it always appeared to me that the most difficult placements to make and to make work were ones where children found it so difficult to give of themselves, who held back, because people in the very nature of things, in relationships, adoptive relationships, and probably all other relationships, we're looking for something from other people……want something for ourselves out of it, and in the absence of that there are adults who find it very difficult to sustain parenting in that way."

11. For Father, the argument of Mr Keehan QC is that although it was a case in which adoption would be the best solution if achievable, it was too soon to be able to say that it was in the best interests of the children, because it was simply too uncertain what it would turn out to be best to do. For the present, he contends, the evidence was that these children were not adoptable. It could not be known whether it would be in their best interests to place them for adoption until the outcome of the planned intervening period of specialist foster parenting was known. At the end of that it was on the cards that, for the reasons given by the Guardian, the somewhat different pool of substitute families to be found amongst long term fosterers, together with the advantages of continuing Local Authority support, might well point, in the best interests of the children, away from an attempt at adoption.

12. Having concluded that the children could not return home, the Judge said this:

"If, as I am driven to the conclusion, the children cannot return home, no other family member is available to care for them, and therefore the choice is adoption or long term foster care. In normal circumstances children of these boys' ages are better off being the subject of adoption. It would provide them with lifelong security of a family and less chance of a disruptive placement, and it seems to me no reason why that general principle should not apply here."

The Judge went on to deal with a separate argument advanced on behalf of Father based on there being a possibility that one explanation of the boys' behaviour might be a disorder on the autistic spectrum (as to which see below). Dealing with the further argument that the boys would be very difficult to place, the Judge held:

"It seems to me that the fact that it may prove difficult to place the boys is no reason not to make a reasonable attempt to do so, given that such outcome, if successful, is plainly in their best interests."

13. The Judge was invited on behalf of Father to adjourn the application for a placement order until the outcome of the specialist foster parenting was known. He observed that in one sense it did not matter, because the Local Authority evidence was that it did not intend to seek to find a family until that period was over. He recorded the evidence of the Guardian on this point, that whilst he did not oppose the making of a placement order at this stage, it appeared to him to be rather an empty gesture, since he could not see what the Local Authority could do with the order that it could not do without it. The Judge stated his conclusion, that a placement order should be made now, in these terms:

"Miss Friel on behalf of the Local Authority argues that the grant of placement orders today would invest confidence in the local authority, confidence that the authority would choose the time for adoption, and would choose the appropriate potential adopters. It is just possible, I suppose, that in certain circumstances the Local Authority might wish to move swiftly and place the children at short notice with particularly appropriate adopters sometime after the six month period of therapeutic parenting. In my judgment, having approved the plans I consider it is in the children's interests to make such order now to give the Local Authority the greatest possible certainty and flexibility for the future."

14. Under the Adoption and Children Act the placement order is a critical stage of the adoption process, especially where it is undertaken by a Local Authority following care proceedings. In the absence of parental consent to placement , which will be the usual situation in a care case, the Local Authority cannot place for adoption without first obtaining a placement order: see section 18. Consistently with that rule, section 22 provides that the Local Authority must apply for a placement order in a number of situations. The relevant one in the present case is s 22(2)(a), because this application was made when the care order application was outstanding and the care order had not yet been made. Section 22(2)(a) requires the Authority to make application for a placement order in such a case:

"…if they are satisfied that the child ought to be placed for adoption."

15. It is now at the placement order stage that the question of dispensing with parental consent has to be grappled with, upon the new welfare test provided by section 52. A placement order requires either consent or that consent be dispensed with: section 21(3). Although a subsequent application for an adoption order also requires either consent or dispensation with it, (section 47(2)) the parent is prevented by section 47(3) from opposing the adoption order except with the leave of the court, and that leave can be given only if there has been a change of circumstances since the placement order was made: see section 47(7) and Re P [2007] EWCA Civ 1069, at paragraph 26. There is a similar restriction on any application by the parent for revocation of the placement order before actual placement (section 24(2) & (3)), and upon an application by the parent for a residence order (section 28(1) and 47(7)). No other section 8 Children Act order, save for contact, can be applied for at all (section 29(3)), and although an application can be made for contact, there is no statutory presumption in favour of contact, such as is found in section 34 Children Act in the case of a child in care (section 26(3)). Statutory provision apart, the making of the placement order, because it brings the care proceedings to an end, will ordinarily mean that the Guardian's active role ends and the parents' representation order, which provides them with ready access to legal advice, will lapse. In the case of inadequate parents, those are added consequences of some significance.

[NOTE: This paragraph was amended by P (A Child) [2008] EWCA Civ 535 at p158 as follows:

"158. We are, however, authorised by Hughes LJ to say that there is a slip in paragraph [15] of the judgment, which the judge was unable to correct in time for the FCR report, but which will be corrected in any further report of the case. Having correctly pointed out that parental consent "has to be grappled with" at the placement order stage, the third sentence of paragraph [15] reads: "Although a subsequent application for an adoption order also requires either consent or dispensation with it, (section 47(2)) the parent is prevented by section 47(3) from opposing the adoption order except with the leave of the court." Hughes LJ has asked us to point out that an adoption order can be made under section 47(4) (b) (ii) where the child has been placed for adoption under a placement order without any further dispensation with parental consent, and that a parent whose child is the subject of a placement order requires the court's leave under section 47(5) to oppose the making of an adoption order in these circumstances."]

16. There is no doubt that this is deliberate statutory policy. The purpose of the statutory change is clearly to bring the decision-making process about adoption forward to a point before the child and the prospective adopters are personally committed to each other. That is clearly beneficial to the child. It may also, though painful to the parent, be kinder to him or her that the issue of adoption or no is grasped earlier rather than later, and in the course of a single set of stressful court proceedings, rather than his having to suffer going through very similar issues in a second set.

17. Insofar as Mr Keehan submits that there should be no placement order if there is anticipated real difficulty in placing the child – and I am not sure that he does – I for my part emphatically disagree. Certain it is that to make a placement order the Judge must be satisfied that adoption is in the best interests of the child, because in the making of any decision relating to adoption, including the making of a placement order, the court must make the child's welfare its paramount consideration: see section 1(1), (2) & (7). But even if there is a real possibility that an adoptive placement will not be found, it by no means follows that adoption is not in the best interests of the child. Since a child cannot usually be placed without a placement order, to say otherwise would be to deprive the child of the chance of what has been determined to be the best possible outcome for him. Mere uncertainty as to whether adoption will actually follow is not a reason for not making a placement order. Indeed, section 22(2)(a), referred to above, clearly contemplates that a placement order may be applied for before it is known whether there will be a care order or not. Plainly a placement order can be, and perhaps usually should be, made at the same time as a care order is made on a plan for adoption which the Judge approves, even though at that stage a good deal of investigation and preparation is needed before the child can actually be placed, and it is not known whether a suitable family will be found or not. The Judge was right to say what is cited at paragraph 12 above.

18. But the difference in this unusual case is that it was not simply a matter of potential difficulty of placement. The boys were, at present, not suitable for placement for adoption. It would not be known whether they ever would be until a particular exercise had been carried out, in the form of the specialised foster placement over several months. And as the Guardian in particular explained, it might well turn out that adoption was not simply not achievable, but was not in the boys' best interests, because their needs could better be met by the kind of substitute family found only in long term fostering. The generalised consideration that adoption would ideally be best does not, on these unusual facts, lead automatically to the conclusion that it was yet possible to say whether it was in the best interests of these boys. In those circumstances I am persuaded that the finding that adoption was in their best interests, and thus that a placement order should follow, was premature.

19. Further, although I would agree with the Judge that a placement order made now brings the advantages which he mentioned to the Local Authority of certainty and flexibility, as well as of avoiding further potentially contested court proceedings, and that these advantages would be likely to enure somewhat to the benefit of the children, it was necessary also to consider the potentially near-conclusive nature of a placement order and its effect upon the parents. If the interests of the children plainly required it, those considerations must of course take second place to their welfare, but on the facts of this case I do not think they did, precisely because it could not yet be known whether adoption would be in the best interests of the boys or not.

20. I am very conscious that we have had sustained debate on this issue, and the carefully constructed submissions of Mr Keehan, which the Judge did not have. Before him, the principal issue was whether the boys should be rehabilitated to their parents or not. I sympathise with the Judge in the generalised conclusion that he reached, and have no doubt that it will often, and perhaps usually, be right to make a placement order when making a care order on a care plan for adoption which the Judge approves. But having had the advantage which he did not have, I am persuaded that on the facts of this case he fell into error. The placement orders should be set aside; the applications should have been adjourned.

21. Mr Keehan's second submission was that no full care order should have been made. He founded that argument upon deficiencies in the care plans. At least in one respect the care plans were deficient, because they did not make clear that the Local Authority's plan was for adoption, but for long term fostering if either an adoptive placement failed or it proved impossible. It is important that the care plan, now given statutory significance by section 31A Children Act 1989, should set out accurately what the plan is, because it travels with the child after the proceedings are over and forms the basis for future reviews. However, as explained in paragraph 6 above, there was no doubt at the hearing what the plans were. The deficiency in the written plans could have been cured by amendment, no doubt would have been if that point had been taken, and still can be. It provides no reason against making a care order.

22. The argument put to the Judge for not making a care order was that the plans were inchoate, that is to say left open the outcome of the specialist foster placement. That, for the reasons I have given, should have had the result that a placement order was not made, but it was not a reason for not making a care order. On the contrary, a care order was clearly required, whatever the outcome of the therapeutic foster placement. On the facts of this case, to fail to make a full care order given admitted threshold criteria and once the real issue in the proceedings, that the children could not return home, had been resolved, would have been wrong. On this issue, the Judge was in my view plainly right.

23. There was a separate argument based on the possibility of an autistic condition. This was a possibility which had occurred, quite properly, to counsel for Father as she prepared the case. It was properly raised in discussions between advocates and thus put to Miss Courtney. She for her part was correctly cautious about stepping outside her expertise, but assented to the proposition that the possibility ought to be looked into and either confirmed or ruled out. The Judge was, however, quite right to say that this had no significant bearing on whether either the care order or the placement order should be made. Whatever was the explanation of the boys' behaviour, the difficulties they presented were the same, the parents still could not cope, and the plans for the future were unaffected.

24. For the reasons given above, I would therefore give leave to appeal, and allow the appeal to the extent of setting aside the placement orders and substituting an order adjourning the applications for them to a date to be fixed. The Local Authority will no doubt seek from the court, and soon, a suitable date when the same Judge can deal with the anticipated application for a placement order at a time when the Authority can put before him, if adoption remains the plan, a reasoned case for saying that it can be known that adoption is in the best interests of these children. By now, the Local Authority should of course have a better idea of the likely length of the specialised foster placement and thus of when such further hearing should, if adoption remains the plan, take place.

Lord Justice Thorpe:
25. I agree.